EDMONSON V. BLOOMSHIRE, 74 U. S. 306 (1868)

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U.S. Supreme Court

Edmonson v. Bloomshire, 74 U.S. 7 Wall. 306 306 (1868)

Edmonson v. Bloomshire

74 U.S. (7 Wall.) 306


1. If it is apparent from the record that this Court has not acquired jurisdiction of a case for want of proper appeal or writ of error, it will be dismissed although neither party ask it.

2. An appeal or writ of error which does not bring to this Court a transcript of the record before the expiration of the term to which it is returnable is no longer a valid appeal or writ.

3. Although a prayer for an appeal, and its allowance by the court below, constitute a valid appeal though no bond be given (the bond being to be given with effect at any time while the appeal is in force), yet if no transcript is filed in this Court at the term next succeeding the allowance of the appeal, it has lost its vitality as an appeal.

4. Such vitality cannot be restored by an order of the circuit court made afterwards accepting a bond made to perfect that appeal. Nor does a recital in the citation, issued after such order, that the appeal was taken as of that date revive the defunct appeal or constitute a new one.

The Judiciary Act provides that final decrees in a circuit court may be reexamined, reversed, or affirmed here

"upon a writ of error whereto shall be annexed and returned therewith, at the day and place therein mentioned, an authenticated transcript of the record, and assignment of errors, and prayer for reversal, with a citation to the adverse party."

It further enacts that

"Writs of error shall not be brought but within five years after rendering or passing the judgment or decree complained of, or in case the person entitled to such writ of error be a feme covert &c., then within five years as aforesaid, exclusive of the time of such disability. "

Page 74 U. S. 307

By an amendatory act, appeals in cases of equity are allowed "subject to the same rules, regulations, and restrictions as are prescribed in law in case of writs of error."

With these provisions of law in force, John Edmonson, Littleton Waddell and Elizabeth, his wife, filed a bill in 1854 in the court below against Bloomshire and others to compel a release of title to certain lands, and on the 16th July, 1859, the bill was finally dismissed. On the 26th May, "an appeal to the Supreme Court of the United States was allowed," and the appellants ordered to give bond in $1,000. No further step was taken in the case till November 14, 1865, when a petition was filed in the circuit court reciting the decree and the allowance (May 26, 1860) of the appeal and setting forth the death of the plaintiff Edmonson intestate on the 30th June, 1862, leaving a part of the petitioners his only heirs-at-law, and that, on the 20th June, 1864, the plaintiff Elizabeth Waddell also died intestate leaving the other petitioners her only heirs-at-law, and that the interest of said intestates had descended to said petitioners as their respective heirs-at-law, and further setting forth that no appeal bond had been given under said order allowing the appeal. The prayer of the petition was that the petitioners be allowed "to become parties to the appeal and to perfect the same by now entering into bond for the appeal."

Thereupon, on the same 14 November, 1865, this entry was made by the court:


"v. 426 -- Petition to perfect appeal"


"And now come the said petitioners, and the court being satisfied that the facts set forth in said petition are true and that the prayer thereof ought to be granted, do order that said petitioners [naming the heirs of Edmonson], be admitted as parties plaintiff in the place of said John Edmonson, deceased, and that the said [naming the heirs of Mrs. Waddell], be admitted as parties plaintiff in the place of the said Elizabeth Waddell, deceased; and that said petitioners have leave to perfect said

Page 74 U. S. 308

appeal so allowed at the June Term, 1859, of this Court, by giving bond in the sum of $1,000, as therein provided."

An appeal bond was accordingly filed with and approved by the clerk November 22, 1865. A citation (duly served) was issued on the 8th December, 1865, reciting the allowance of an appeal at the October Term, 1865, of the court and citing the appellees to appear "at the next term of the Supreme Court, to be holden on the first Monday of December next." The transcript was filed here by the appellants for the first time on the 3d of January, 1866.

The case having been fully argued on the merits by Messrs. Stanbery and Baldwin for the appellants and by Mr. J. W. Robinson by brief, contra, it was suggested from the bench that doubts were entertained by it as to the jurisdiction of the Court over the case, the ground of the doubt, as the reporter understood it, being that while the record showed that the only appeal asked for or allowed was that of May 26, 1860, the transcript was not filed during the term next succeeding the allowance of the appeal, nor till January, 1866, and thus that while the appeal had been taken in time, the record had not been filed here in time to save it. chanrobles.com-red

Page 74 U. S. 309


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